Case C-501/07 P: Appeal brought on 19 November 2007 by S.A.BA.R. SpA against the order made by the Court of First Instance (Fourth Chamber) on 17 September 2007 in Case T-176/07 S.A.BA.R. SpA v Commission of the European Communities
Date: 2007-11-19
Institutions: Court of Justice
Subjects: Italy, State aid, appeal, public sector, tax exemption

C 37/4

EN

Official Journal of the European Union

9.2.2008

Pleas in law and main arguments

by Article 66(14)

By the Commission decision of 5 June 2002 (1) ‘on State aid …
in the form of tax exemptions and subsidised loans to public
utilities with a majority public capital holding’, the income tax
exemption scheme provided for by Article 3(70) of Law
No 549/1995 and
of Decree-Law
No 331/1993, as converted and amended, in favour of joint-
stock companies with majority public
shareholdings and
providing local public utilities was declared to constitute State
aid incompatible with the common market. The Commission
decision did not
relate to specific companies but covered
companies established within the terms of Article 22 of Law
No 241/1990 with majority public shareholdings. The decision
was for that reason not notified to any company (and was not
notified to the appellant) as no individual addressees were speci-
fically identified. The Italian State, by way of Legislative Decree
No 10 of 15 February 2007, gave effect to the abovementioned
decision, allocating the task of recovery to the revenue authori-
ties. Accordingly, on 29 March 2007, the Mantova revenue
office sent to the appellant company a payment demand for the
of
EUR 1 748 289,75
sum of
capital
EUR 912 180,64.

interest

plus

It is submitted that that finding is without basis, also in the light
of the judgments in Case 730/79 Philip Morris Holland (2), Case
323/82 Intermills (3), Case T-358/94 Air France (4), and, in par-
ticular, the judgment of the Third Chamber of the Court of
Justice in Joined Cases C-346/03 and C-529/03 Atzeni and
Others (5), for which reason it is requested in the present appeal
that the order of the Court of First Instance be amended.

The action before the Court of First Instance was brought imme-
diately after the appellant company had become aware that it
was one of the addressees of the Commission's decision, that is
to say, when it was notified of the payment demand issued by
the revenue office.

The order of the Court of First Instance is also challenged on
the ground that
to a misapplication of
effect
Article 225 EC.

it gave

The application for annulment of the Commission decision is to
be treated as inherently linked to the request that the appellant
not be made subject to that decision. It is accordingly requested
that the order made at first instance be amended, also in regard
to the declared lack of competence ratione materiae on the part
of the Court of First Instance.

The appellant company, however,
is not a company with a
majority public shareholding, but is, rather, entirely public, with
the result
‘the Commission's findings and its decision’
cannot apply to it.

that

The appellant has in-house responsibility for local public utili-
ties, the management of which had previously been entrusted by
the commune of Mantova to the municipally-owned under-
taking (ASM), which was
transformed into the appellant
company pursuant to Law No 127/97.

(1) OJ 2003 L 77, p. 21.
(2) [1980] ECR 2671.
(3) [1984] ECR 3809.
(4) [1996] ECR II-2109.
(5) [2006] ECR I-1875.

The appellant manages the public utilities under a private struc-
ture, within an essentially local context, without being able to
influence free competition, which cannot exist as there is no
market.

Appeal brought on 19 November 2007 by S.A.BA.R. SpA
against the order made by the Court of First Instance
(Fourth Chamber) on 17 September 2007 in Case T-176/07
S.A.BA.R. SpA v Commission of the European Communities

A company with a wholly public shareholding is nothing other
than an indirect body of the associated communes, which are
the actual recipients of the fiscal aid with which the Commis-
sion takes issue.

On objective and subjective grounds, therefore, the tax exemp-
tion granted to the appellant cannot be classified as unwarranted
State aid at variance with the requirements of Article 87 EC.

Parties

(Case C-501/07 P)

(2008/C 37/05)

Language of the case: Italian

For the reasons outlined, an action was brought before the
Court of First Instance against the abovementioned Commission
decision. It was registered as Case T-175/07 and assigned to the
Fourth Chamber. A decision in the case was given by way of an
order of the Court of First Instance of 17 September 2007
declaring the action to be inadmissible on the ground of failure
to comply with the time-limit laid down in the fifth paragraph
of Article 230 EC, according to which the action for annulment
ought to have been brought within two months of the publica-
tion of the contested measure, or of its notification to the appel-
lant or, in the absence thereof, of the day on which it came to
the knowledge of the latter, as the case may be, in accordance
with Article 102(1) of the Rules of Procedure of the Court of
First Instance.

Appellant: S.A.BA.R. SpA (represented by: E. Coffrini and F.
Tesauro, avvocati)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— annul and/or amend in its entirety the order of the Court of
First Instance at present under appeal, and rule as appro-
priate;

— grant the forms of order already sought at first instance.

9.2.2008

EN

Official Journal of the European Union

C 37/5

Pleas in law and main arguments

by Article 66(14)

By the Commission decision of 5 June 2002 (1) ‘on State aid …
in the form of tax exemptions and subsidised loans to public
utilities with a majority public capital holding’, the income tax
exemption scheme provided for by Article 3(70) of Law
No 549/1995 and
of Decree-Law
No 331/1993, as converted and amended, in favour of joint-
stock companies with majority public
shareholdings and
providing local public utilities was declared to constitute State
aid incompatible with the common market. The Commission
relate to specific companies but covered
decision did not
companies established within the terms of Article 22 of Law
No 241/1990 with majority public shareholdings. The decision
was for that reason not notified to any company (and was not
notified to the appellant) as no individual addressees were speci-
fically identified. The Italian State, by way of Legislative Decree
No 10 of 15 February 2007, gave effect to the abovementioned
decision, allocating the task of recovery to the revenue authori-
ties. Accordingly, on 20 March 2007, the Guastalla revenue
office sent to the appellant company the following payment
demands: payment demand No 3796 of 15 March 2007 for the
capital
of
EUR 1 912 128,47
EUR 2 192 225; payment demand No 3799 of 15 March 2007
for
the capital sum of EUR 815 406,94 plus interest of
EUR 783 529; and payment demand No 3800 of 15 March
2007 for the capital sum of EUR 439 549,29 plus interest of
EUR 712 588.

sum of

interest

plus

is not a company with a
The appellant company, however,
majority public shareholding, but is, rather, entirely public. For
that reason, ‘the Commission's findings and its decision’ cannot
apply to it.

The appellant has in-house responsibility for local public utilities
in relation to the eight associated communes, and was estab-
lished specifically for that purpose in accordance with the
arrangements set out in the legislation.

The appellant manages the public utilities under a private struc-
ture, within an essentially local context, without being able to
influence free competition, which cannot exist as there is no
market.

A company with a wholly public shareholding is nothing other
than an indirect body of the associated communes, which are
the actual recipients of the fiscal aid with which the Commis-
sion takes issue.

On objective and subjective grounds, therefore, the tax exemp-
tion granted to the appellant cannot be classified as unwarranted
State aid at variance with the requirements of Article 87 EC.

For the reasons outlined, an action was brought before the
Court of First Instance against the abovementioned Commission
decision. It was registered as Case T-176/07 and assigned to the
Fourth Chamber. A decision in the case was given by way of an
order of
Instance of
17 September 2007 based on the ground of failure to comply
with the time-limit
laid down in the fifth paragraph of
Article 230 EC, according to which the action for annulment
ought to have been brought within two months of the publica-

the Court of First

inadmissibility of

tion of the contested measure, or of its notification to the appel-
lant or, in the absence thereof, of the day on which it came to
the knowledge of the latter, as the case may be, in accordance
with Article 102(1) of the Rules of Procedure of the Court of
First Instance.

It is submitted that that finding is without basis, also in the light
of the judgments in Case 730/79 Philip Morris Holland (2), Case
323/82 Intermills (3), Case T-358/94 Air France (4), and, in par-
ticular, the judgment of the Third Chamber of the Court of
Justice in Joined Cases C-346/03 and C-529/03 Atzeni and
Others (5), for which reason it is requested in the present appeal
that the order of the Court of First Instance be amended.

The action before the Court of First Instance was brought imme-
diately after the appellant company had become aware that it
was one of the addressees of the Commission's decision, that is
to say, when it was notified of the payment demands issued by
the revenue office.

The order of the Court of First Instance is also challenged on
the ground that
to a misapplication of
effect
Article 225 EC.

it gave

The application for annulment of the Commission decision is to
be treated as inherently linked to the request that the appellant
not be made subject to that decision. It is accordingly requested
that the order made at first instance be amended, also in regard
to the declared lack of competence ratione materiae on the part
of the Court of First Instance.

(1) OJ 2003 L 77, p. 21.
(2) [1980] ECR 2671.
(3) [1984] ECR 3809.
(4) [1996] ECR II-2109.
(5) [2006] ECR I-1875.

Reference for a preliminary ruling from the Tribunal
Supremo (Spain)
lodged on 19 November 2007 —
Compañía Española de Comercialización de Aceite, SA v
Asociación
y Comercio
la
Exportador de Aceite de Oliva (ASOLIVA), Asociación
Nacional de Industriales Envasadores y Refinadores de
Aceites Comestibles (ANIERAC) and Administración del
Estado

Industria

Española

de

(Case C-505/07)

(2008/C 37/06)

Language of the case: Spanish

Referring court

Tribunal Supremo